Standing in Support of LGBTQ+ Health Insurance Rights

THE CHALLENGE:

In a win for the transgender community in late 2016, the North Carolina State Health Plan (State Plan), removed the exclusion of gender-confirming healthcare: Transition-related care was covered in the 2017 health plans. However, following the election of a new State Treasurer, the State Plan reinstated the exclusion in 2018 and cut off certain insurance benefits for transgender individuals, allowing the State Plan’s coverage for transition-related care to expire. The move violated federal anti-discrimination policies.

In response to the State Plan’s new stance on gender-confirming healthcare, civil rights organizations Lambda Legal and Transgender Legal Defense & Education Fund filed a lawsuit on behalf of a group of transgender individuals and parents of transgender minors to challenge the decision. When the State Plan moved to dismiss the lawsuit, the district court denied the motion, holding that the State Plan had waived sovereign immunity for discrimination claims as a condition of receiving federal healthcare funds.

The State Plan appealed the decision to the Fourth Circuit, arguing that they had not actually waived sovereign immunity because the waiver was not clear to them.

OUR OBJECTIVE:

At Lambda Legal’s request, Michael Weaver led a cross-office McDermott pro bono team to assist Equality North Carolina—a nonprofit, nonpartisan organization dedicated to securing rights and protections for LGBTQ+ people in the state—in drafting an amicus brief in the appeal. The team included Michael Stanek, Sarah Hogarth, and lawyers from McDermott’s Discovery team.

Through a Freedom of Information Act request, Equality North Carolina uncovered a paper trail demonstrating that State Plan officials repeatedly made decisions about healthcare coverage with the knowledge that their discriminatory policies would subject the State Plan to a lawsuit.

Using this evidence, the pro bono team created and filed an amicus brief that demonstrated the fallacy of the State Plan’s argument.

THE OUTCOME:

While the Fourth Circuit has not yet ruled on the case, Lambda Legal was thrilled with the resulting brief, saying, “The McDermott team has simply done SUPERB work. The pro bono review of our documents alone was an enormous lift, and a very generous project for the Firm to take on. But the brief itself is just a tour de force, and makes an irreplaceable contribution to the appeal.”

GO FURTHER:

Because they were impressed by the McDermott team’s work on the amicus brief, Lambda Legal asked us to expand our involvement, helping them represent the plaintiffs in the underlying case—current and former state employees and their children who were denied coverage under the State Plan.

In addition to expanding the McDermott team to include Dmitriy Tishyevich, Adam Safer and Lauren Evans, we have partnered with Lambda Legal, Transgender Legal Defense & Education Fund and Harris Wiltshire & Grannis to represent the plaintiffs as co-counsel. After deploying our resources to conduct written discovery and take depositions, we will file a motion for summary judgment by late summer or early fall.